Property Enforcement

A Texas Final Decree of Divorce provides for the just and right division of the parties’ community estate – their assets and liabilities. If a party violates the divorce decree’s provisions as they relate to the division of the community estate, the remedy for the wronged party is called a motion for enforcement.

 

When and Where Should I File for Enforcement of Property Division?

The enforcement motion must be filed in the court of original jurisdiction – the court where the divorce was originally filed. There are exceptions to this rule. For instance, if both parties have left the state, the decree may need to be registered in the new state and the matter heard there.

The motion for enforcement must be filed within two years after the final decree was signed by the court. If there is now property that was not in existence at the time of the divorce, then the suit should be filed within two years of the date the right to the property came into existence.

 

Are There Limitations on the Court’s Power to Enforce the Divorce Decree?

In Texas, a court may not change the division of property made in the Final Decree of Divorce. But if the court’s division of that property is not specific enough to enforce by contempt or otherwise, the judge has the authority to clarify the order to make it more specific and, therefore, enforceable. An order on a motion for enforcement of property division is limited to enforcing what is in the decree and clarifying the parts of the decree that are ambiguous.

 

What Relief Is Available?

When a motion for enforcement is filed, the court may enforce the property division in the divorce decree in any of the following ways:

  • The court can award a judgment for money as damages caused by the other party’s failure to follow the decree
  • If property exists, the court can order the delivery of that specific property, or a sum of money or its equivalent to compensate the wronged party
  • If there are payments which the other party was ordered to make, but didn’t, the court can order a judgment for the unpaid amount
  • The court can find the violating party in contempt (which may mean incarceration, probation, or both)
  • The court may award attorney fees and costs

 

What Else Do I Need to Know About Property Division Enforcements?

When one party has received money or property that was awarded to the other party in the divorce decree, it still belongs to that other party. The Texas Family Code creates a fiduciary obligation in favor of the rightful owner and may impose a constructive trust on any property awarded in the decree of divorce that is received by the non-owning party. That means the party wrongfully holding the property or money has a special relationship (a fiduciary relationship) that imposes certain duties on him or her, including the duty to give the property to the other party. A constructive trust may be created, which means if the bad-acting party spends the wrongfully held money or disposes of the wrongfully held property, they may be subject to criminal and civil penalties. This may also subject the non-owning party to liability under a cause of action known as breach of fiduciary duty.

If you need to file, or are involved in, a property division enforcement, the experienced attorneys at Orsinger, Nelson, Downing & Anderson can help. Contact us sooner rather than later to navigate to a fair resolution.